Citation Nr: 0802157
Decision Date: 01/18/08 Archive Date: 01/29/08
DOCKET NO. 05-38 075 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased rating for paroxysmal atrial
fibrillation, currently evaluated as 60 percent disabling.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Jennifer Margulies, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1944 to
September 1967.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a August 2005 rating decision of the Waco,
Texas, Department of Veterans Affairs (VA) Regional Office
(RO), which confirmed and continued a 60 percent evaluation
for paroxysmal atrial fibrillation.
FINDING OF FACT
The service-connected atrial fibrillation is manifested by a
workload of 5 metabolic equivalents (METs) and a left
ejection fraction of 62 percent.
CONCLUSION OF LAW
The criteria for a disability evaluation in excess of 60
percent for the service-connected paroxysmal atrial
fibrillation have not been met. 38 U.S.C.A. § 1155 (West
2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104,
Diagnostic Code (DC) 7015 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Pertinent Law and Regulations
Disability evaluations are determined by the application of
the schedule of ratings which is based on average impairment
of earning capacity. See 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities. In order
to evaluate the level of disability and any changes in
condition, it is necessary to consider the complete medical
history of the veteran's disability. See Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). While the veteran's
entire history is reviewed when making a disability
determination, where service connection has already been
established and increase in the disability rating is at
issue, it is the present level of the disability that is of
primary concern. Francisco v. Brown,
7 Vet. App. 55 (1994). Recently, in Hart v. Mansfield, No.
05-2424 (U.S. Vet. App. Nov. 19, 2007), the United States
Court of Appeals for Veterans Claims (Court) held that staged
ratings are appropriate for an increased rating claim in such
a case, however, when the factual findings show distinct time
periods where the service-connected disability exhibits
symptoms that would warrant different ratings.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2007). When after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding the degree of disability
such doubt will be resolved in favor of the claimant.
38 C.F.R. § 4.3 (2007).
II. Analysis
In this case, service connection for the veteran's paroxysmal
atrial fibrillation was granted by a rating decision of May
1999. A 60 percent rating was granted, effective August 7,
1997. This rating has been in effect since that date. In
May 2005, the veteran filed an informal claim seeking a
higher rating. A rating decision, dated August 2005
continued the 60 percent rating for paroxysmal atrial
fibrillation. The veteran appealed.
The veteran asserts that the 60 percent evaluation currently
assigned does not accurately reflect the severity of his
disability. In statements submitted in support of this
appeal, the veteran contends that he has become more
dependent on his pacemaker and that his left ventricular
dysfunction merits a higher rating.
Under 38 C.F.R. § 4.104 DC 7015, a 60 percent evaluation is
warranted where there has been more than one episode of acute
congestive heart failure in the past year, or; workload of
greater than 3 METs but not greater than 5 METs results in
dyspnea, fatigue, angina, dizziness, or syncope, or; left
ventricular dysfunction with an ejection fraction of 30 to 50
percent. A 100 percent evaluation is warranted where there
has been chronic congestive heart failure, or workload of 3
METs or less results in dyspnea, fatigue angina, dizziness ,
or syncope, or; left ventricular dysfunction with an ejection
fraction of less than 30 percent.
A careful review of the pertinent evidence on appeal reveals
that the veteran's disability does not more nearly
approximate the criteria for a 60 percent rating. There is
no competent medical evidence demonstrating that the veteran
has chronic congestive heart failure, or workload of 3 METs
or less results in dyspnea, fatigue angina, dizziness , or
syncope, or; left ventricular dysfunction with an ejection
fraction of less than 30 percent. Thus, an increased rating
is not warranted.
By history, it is noted that service medical records indicate
that the veteran had frequent ventricular contractions, often
in trigeminy. After service, treatment records dated from
March 1997 show that atrial fibrillation was present at
baseline. The sinus rhythm was maintained and conduction
properties were within normal limits. A pacemaker was
recommended as a result of the electrophysiology study
conducted. A pacemaker was installed in 1997. After the
veteran received his pacemaker, a checkup revealed that the
veteran had recurrent atrial fibrillation despite low dose
Flecainide therapy. The veteran was symptomatic and had poor
exercise tolerance. Medical records from November 1998 show
that the veteran's medication was switched to Zocor, which
caused fatigue and dyspnea.
On VA examination in December 1998, the examiner noted that
the veteran had syncopal attacks in 1996 which caused him to
black out. The examiner reported METs in between 3 and 5
without dizziness or syncopal attacks. It was reported that
the veteran was able to climb the staircase slowly and could
walk a distance of one to two blocks. The veteran remained
on medication.
A March 2005 medical report shows that the veteran's heart
demonstrated an irregular rate, but his extremities were
without edema. The impression included symptomatic
paroxysmal atrial fibrillation with a 26% atrial fibrillation
by pacemaker interrogation and pacemaker in SITU for
symptomatic bradycardia, with a remote history of syncope.
The veteran underwent an electrophysiology testing with AV
junction ablation. The impression was successful AV junction
ablation with junctional escape rhythm.
The veteran underwent another VA examination in July 2005.
At this VA examination, the examiner noted that the veteran
had an irregular heartbeat while on active duty but it was
not bothersome at the time. An atrio ventricular junction
ablation was performed on March 18, 2005. The examiner
reported that the pacemaker, which controls at 80 beats per
minute, had no side effects and performed well. The examiner
also reported that the veteran had a workload of 5 METs from
the mailbox and back with a distance of 50 feet. It was also
noted that while the veteran is retired, he played 18 holes
of golf two times a week with the use of a cart. The veteran
also reported normal activities of daily living. His heart
was of normal size, his pulse was 65, blood pressure was
126/59, there was no evidence of peripheral edema and he had
a left ventricle ejection fraction of 62 percent. Arterial
fibrillation and complete heart block with cardiac pacing
were diagnosed.
As demonstrated above, the criteria for a rating in excess
of60 percent are not met. Although the medical evidence
shows that the veteran has a workload of 5 METs and a left
ventricle ejection fraction of 62 percent, it does not show
that his disability is manifested by METs of 3 or less or an
ejection fraction of less than 30 percent. The Board also
notes that the veteran continues to play golf and reportedly
performs normal activities of daily living. Accordingly, in
this case, the medical records do not support a higher
evaluation and at no time during the pendency of this appeal
does the veteran's symptoms warrant a different rating. Hart
v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007).
In conclusion, the Board has determined that the
preponderance of the evidence is against the veteran's claim,
and the benefit-of-the-doubt doctrine is not for application.
The claim for an increased rating is denied.
III. Duty to Notify and Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA in terms of its duty to notify and assist
claimants. When VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and the representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183
(2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004), the Court held that VA must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
that VA will request that the claimant provide any evidence
in his possession that pertains to the claim.
The Board concludes that the veteran has been afforded
appropriate notice under the VCAA. The RO provided a VCAA
notice letter to the veteran in May 2005, notifying him of
what information must be submitted to substantiate a claim
for an increased rating.
As to informing the veteran of which information and evidence
he was to provide to VA and which information and evidence VA
would attempt to obtain on his behalf, VA informed him it had
a duty to obtain any records held by any federal agency. It
also informed him that on his behalf, VA would make
reasonable efforts to obtain records that were not held by a
federal agency, such as records from private doctors and
hospitals. The VCAA letter of May 2005 stated that the
veteran would need to give VA enough information about the
records so that it could obtain them for him. Finally, he
was told to submit any medical records or evidence in his
possession that pertained to the claim.
The Court in Dingess/Hartman holds that the VCAA notice
requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim. As previously
defined by the courts, those five elements include: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability.
Element (1) is not at issue. Regarding elements (2) and (3)
(current existence of a disability and relationship of such
disability to the veteran's service), the veteran was
provided with notice of what type of information and evidence
was needed to substantiate the claim for service connection.
Regarding elements (4) and (5) (degree of disability and
effective date), the veteran was not provided with notice of
the type of evidence necessary to establish a disability
rating or effective date for the disability. The Board finds
that because a preponderance of the evidence is against the
claim, any questions as to the appropriate disability rating
or effective date to be assigned are rendered moot.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with
the current appeal, VA has obtained the veteran's service
medical records and VA treatment and examination reports. VA
also provided the veteran with a VA examination in connection
with his claim.
For the foregoing reasons, the Board concludes that all
reasonable efforts were made by VA to obtain evidence
necessary to substantiate the claim. The evidence of record
provides sufficient information to adequately evaluate the
claim. Therefore, no further assistance to the veteran with
the development of evidence is required. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006).
ORDER
Entitlement to an increased rating for paroxysmal atrial
fibrillation, currently evaluated as 60 percent disabling is
denied.
____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs